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The AAUP filed an amicus brief in the United States Court of Appeals for the Fifth Circuit that argues that the termination of Professor Theresa Buchanan, for making statements in the classroom that the university improperly characterized as sexual harassment, violated her academic freedom. The brief explains that sexual harassment policies, particularly those focused on speech, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on First Amendment rights of free speech and academic freedom. AAUP argues that the university’s policies, and their application to the facts, failed this test and thus violated Professor Buchanan’s academic freedom.

Professor Buchanan was a highly productive scholar and teacher at Louisiana State University (“LSU”), who was on the verge of promotion to full professor when she was summarily suspended by her dean, pending an investigation of “serious concerns” that had been raised about her “inappropriate statements” to her students. In May 2014, LSU’s Office of Human Resource Management (“OHRM”) found Buchanan guilty of sexual harassment based solely on her occasional use of profanity and sexually explicit language with her students, despite the fact that Buchanan did not use language in a sexual context and instead employed it to further educational objectives. Buchanan’s dean recommended her dismissal, and has stated that he did not condone “any practices where sexual language and profanity are used educating students.”

Subsequently, a faculty hearing committee recommended unanimously against dismissal of Professor Buchanan. While the FHC faulted Professor Buchanan for having violated LSU’s policies on sexual harassment by her occasional use of “profanity, poorly worded jokes, and sometimes sexually explicit ‘jokes’ in her methodologies,” it found no evidence that this behavior was “systematically directed at any particular individual.” Despite this recommendation, the university president recommended Professor Buchanan’s dismissal to LSU’s Board of Supervisors, which terminated her in June of 2015.

Professor Buchanan filed suit in the United States District Court for the Middle District of Louisiana, and argued that LSU’s sexual harassment policy violated her First Amendment rights because it was vague and overbroad both facially and as applied in her case, and that her due process rights were violated. The District Court ruled against Professor Buchanan, finding that that LSU’s sexual harassment policy was constitutional, and that she was afforded procedural and substantive due process. Professor Buchanan appealed the court’s ruling that the sexual harassment policy, both facially and as applied, was constitutional, and the AAUP filed an amicus brief in support of her appeal.

The AAUP amicus brief emphasizes the importance of faculty being able to use controversial language and ideas to challenge students in the classroom.

The use of provocative ideas and language to engage students, and to enliven the learning process, is well within the scope of academic freedom protected by the First Amendment. Many things a professor says to his or her students may “offend” or even “intimidate” some among them. If every such statement could lead to formal sanctions, and possibly even loss of employment, the pursuit of knowledge and the testing of ideas in the college classroom would be profoundly chilled.

The brief also recognizes the importance of combatting sexual harassment, and explains that these two goals are not in contradiction, but can instead be mutually achieved.

AAUP has long emphasized that there is no necessary contradiction between a university’s obligation to address problems of sexual harassment effectively and its duty to protect academic freedom. To achieve these dual goals, hostile environment policies, particularly those focused on speech alone, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on First Amendment rights of free speech and academic freedom.

Finally the brief argues that to distinguish unprotected harassing speech from constitutionally protected speech under the First Amendment, policies allowing discipline for sexual harassment based solely on speech must include a showing that the speech was so “severe or pervasive” that it created a hostile environment. Because the policies at LSU did not require such a showing, and because none was made in this case, the policies and Professor Buchanan’s termination violated academic freedom.